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tv   Washington This Week  CSPAN  November 8, 2014 4:02pm-5:51pm EST

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we have two new members of congress bringing up our gains on capitol hill to one. we did lose one office. we have two latino governors that were reelected. the way we see it is that the higher of latinos can go in the chain, the better it is going to be for our community. when we start seeing the numbers of latino voters that action turnout at the polls, we are encouraged by the fact that latinos are getting elected to those offices. hopefully, we can continue to work with them to ensure that we will have more latinos -- and we will have more numbers on statewide offices that we were monitoring -- but how can we develop that talent. thank you for inviting us. thank you. thank you.
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>> police identify yourself. >> i had a polling question and a question for the audience. are you seeing a similar phenomenon that you mentioned in texas with the effort races? i was curious to your take on that for the latino voters. exits polls are they were at least when i left the hotel to come here. >> gary is talking about an important part there are a large numbers of latinos in colorado. they should be able to report those results. the fact that they have not reported subgroup results suggest that they don't have confidence in those results.
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maybe they don't jive with other things we have seen. we would hope that they can learn from their mistakes. in texas, we know that there is some major inconsistencies. ison newsmaker, our guest bernie sanders. as chair of the veterans affairs committee, he discusses changes to the v.a. and the leadership of veterans affairs secretary robert mcdonald. he also talks about the results of the midterm elections, as well presidential race in 2016. here is a preview. i think many of the democratic candidates it not run on an agenda which resonated with working people. that it is worthwhile for me to come out and vote. what is very sad, and i hope that people appreciate this, we
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have a situation where i believe some 60% of the american people did not vote. people andf young low income working people did not vote. regardless of our political views, i would hope that people would see that as a real problem and a democratic society. to answer your question, this is what i think. where democratic candidates have been week is not coming up to the plate and telling other going to take on the billionaire class. especially with the citizens united supreme court decision, the owners are able to spend unlimited sums of money. ,hat congress is doing especially the republicans, and some democrats, is working to advance the interest of the 1% and not the 99%. you look at the polls, and what is totally amazing, you look at
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the polls out there, and i do, what do people say? they want to raise the minimum wage to a living wage. have the democrats taken on the republicans? not enough. people want to rebuild our crawling infrastructure. yes, investing in infrastructure will cost money, but i believe people will support it because they understand that a $1 trillion investment in rebuilding our roads and bridges 13 water systems can create million decent paying jobs. you know what else? people want to overturn this disastrous citizens united supreme court decision. they are sick and tired of these ugly 32nd ads on television coming from both parties. they do want campaign finance limitations. republicans don't want it. what you can see that entire interview with bernie sanders sunday at 10:00 a.m. and 6:00 p.m. here on c-span.
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a three-judge panel at the d c circuit court of appeals in washington heard a case tuesday on the constitutionality of the nsa's collection of phone records. in addition to considering whether the agency is in violation of the fourth amendment and first amendment, the kurt -- court is considering the claim whether a customer of a rise in wireless can bring a suit against the government if he cannot prove that his records were obtained by the nsa. this program is one hour and a half. >> thank you. may it please the court. here on behalf of plaintiff. i'd like to reserve is 10 minutes for rebuttal. they improperly joined a government intelligence program that's designed to advance our counterterrorism efforts by identifying known and unknown contacts of individuals
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associated with international terrorist groups. the court's injunction for multiple reasons was improper. first, the plaintiffs have failed to establish that they have challenged the program at all because they alleged, first, they're only subscribers of verizon wireless but verizon, as the district court acknowledged, has not been identified as a company subject to order of the foreign intelligence surveillance court that demonstrates that any information about verizon wireless subscribers have been acquired. >> doesn't the government rely on the proposition that the numbers are virtually universal and if that's the case, is it safe to say that verizon wireless numbers are brought in? >> quite the contrary.
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we make clear in the footnote in our opening brief, and the foreign surveillance intelligence court said under this program the government does not and never has acquired all or nearly all of the telephone call data records of americans as part of the program. therefore, it's improper to assume it would be only speculation, in fact, to assume that subscribers of any particular telephone company other than the one company, arising business network services which has been , acknowledged by the united states for a three-month period last year, to have participated in the program that any other company in any particular period had participated subject to an order. for that reason, the district court's assumption that because verizon wireless is a large telecommunications company, therefore, it must have been participating in the program.
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>> is it the largest? >> i don't know whether it's the largest telecommunications company, judge williams. the district court pointed out, i believe they said it's the largest of the wireless telecommunications company. but remember here there is no evidence that either verizon wireless or any other provider has participated. and that is important to maintain the classified nature about the details of this program, how it operates. unfortunately i'm constrained in what i can say, of course, about it. but what i can say is as in the amnesty international case and the supreme court, it's plaintiff's burden to demonstrate standing and they failed to do so here, not only because their theory as subscribers of verizon wireless, which they cannot substantiate the district court acknowledged there's no evidence that verizon wireless participated, but also because the injury they assert is not based on the mere collection of metadata itself
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but on the possibility that the government might misuse the metadata to compile dossiers about the activities of these particular plaintiffs. >> if there is an invasion of privacy by the collection of the metadata and the supreme court in jones recognizes even in the opinion of the court that it is the protected interest under the fourth amendment, then is it necessary that they show any misuse against them or is the collection by itself an invasion of privacy sufficient to meet that element of standing? >> well, on the standing and on the merits, we think it's -- >> let's stay withstanding for the moment. >> sure, your honor. as to standing, the plaintiffs assert in their briefs but not in their complaint with their evidence in sport of their injunction motion that mere collection might be sufficient to show standing, but it's important then to ask in what way that would harm a protected
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fourth amendment privacy interest. >> no. the question is, is it not a harm in itself to invade the privacy interest without showing any further harm? >> if there were a privacy interest in the metadata that a company maintains in its own business records about the calls of its subscribers, where that company maintains its business records for fraud prevention and billing, then if the court were to find if there were a fourth amendment privacy interest, that argument might be sufficient. but here that argument is precluded. >> the merits and -- >> well, this is why i mentioned in response to the judge's question. i think the point is relevant as collection -- both of the standings and the merits. in other words, there are similar points to be made. there is no protected
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constitutional interest that's been invaded by the mere collection of the business records of a telephone company. >> what, if anything, beyond the -- let me back up. concern the information or data as to whom the caller had called -- >> yes, your honor. >> is the metadata that you're collecting here broader than that? does it go beyond the information as to who has called? >> well, judge sentelle, i think it does in some senses but not in a material way. >> we'll be the judges in materialality. you tell me what it is. >> i think the question becomes, is there any way in which the particular metadata that's been authorized by the foreign intelligence surveillance court to be turned over is different from the metadata that's issue in smith? it was required by a pin register. it was the number dialed from
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the subjects phone. the defendant's phone. in this case, that information is included as well as the number of the phone that's calling or the -- both calling and receiving numbers are acquired. in that sense it's like the trap and trace devices as well which is the kind of technology that's been around for a long time. it also includes the information about the call, when it was placed, how long it was before it was concluded and the date , and time, for example. there are some unique identity -- identifiers about telephones that are listed in footnote 2 of the primary orders that are included in the appendix here that include things like inei, imsi. these are associated with telephones and devices. so that information is acquired. again, this seems to us is very much the same kind of information that was at issue. >> what -- if i may interrupt. what, if any, information is gathered about the physical location of wireless callers, if anything?
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>> so judge sentelle -- sorry. >> called tower type information. >> tower information is not included in this metadata. the courts have specified that it's not included. in passing reference, they suggested there's something about trunk identifiers. trunk identifiers are not like cell tower information in the sense that they could be used to identify a location. they just identify where a call is routed and interconnected within the network but not in the same details or closely way to cell tower information. and so because the fisc orders, the judicial orders that authorize this program and impose limitations on it specify the type of metadata, the court in that case, in the many orders that it has issued, has
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specified that it has concluded this kind of metadata is within the supreme court decision in smith. so that's the judicial determination by the fisc itself. we think that supreme court's decision is therefore depositive of this case and requires reversal of the injunction because this is not a search under the fourth amendment as the supreme court emphasized. there's no reasonable expectation of privacy in the numbers one dials to complete a call nor any other information as the fisc has concluded about when a call takes place and the like. this information also does not include any content of communication and content of communication is specifically accepted in the fisc orders. just as the supreme court in ,mith specifically pointed out it was not an issue in smith.
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therefore the court flagged that , aspect of it as another relevant consideration. we think it's likewise relevant here and so does the fisc. finally, this information is not being acquired from a pin register capturing from transmittal to the telephone company but from the business records of the company itself which maintains it for their own purposes. we think that's an additional reason why this information is not subject to protections of the fourth amendment in this context. so just as a business may be required to turn over its records in the context of a subpoena of grand jury, etc., cases we cited there, it's very clear that this information is owned by the telephone company, not by the subscribers in themselves. >> we read smith to -- that was the basis of finding the
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continuous pursuit of jones over i guess a week or so. , if that's true, if that's the limits on smith, then does it make a significant difference that these data are collected for a five-year period? >> no, judge williams. because remember, one of the differences here is that unlike a g.p.s. tracking device which is placed on an individual vehicle for the purpose of tracking that individual, as in maynard and jones, here the data is actually acquired on an ongoing basis by the telephone company for its own business purposes. so the fact that the company -- so one of the points that this court -- and i think even perhaps the supreme court, one of the opinions might have made is you don't expect the government to be tracking your movements moment-to-moment, 24 hours a day for 28 days. whereas here you do expect and you have to expect when you dial a phone number your telephone company has a record of that
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phone number every time you use the phone. >> but certainly maynard seemed -- your expectations would be different depending upon the degree and five years seems like a substandingly longer than one would expect the -- in fact, i don't think the telephone companies kept them that long, right? >> it's not clear in the record of this case, judge williams, as far as i know about the length of time the telephone companies keep the data. but the point is there is a 90-day period that requires the telephone companies to turn over the information from their records to the government for purposes of this program. now, the government may then retain it for five years, but that's not the same as asking whether the telephone company must keep it for five years. this is an order from a court requiring turnover for a 90-day period. that's the relevant consideration for purposes of --
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>> why is that relevant consideration rather than -- how can we discard the five-year term that government keeps it? >> because under smith and miller, the question is, who's information is this and is there an expectation of privacy by another person? and here the information belongs to the telephone company just as the financial information in miller belonged to the bank. and the fact is once the bank has them or the telephone company has them, it can turn them over to the government. that's the riskier taking. >> phone company ownership has an on and off switch, right? phone company owns it, no expectation of privacy. that's not the view that court took in maynard. >> well, i think in maynard and jones the question was quite different, your honor. the question there was not about whether there had been a third party that had the information. and that's the key point about smith and miller and why we think this case is governed by that supreme court precedent and really not by maynard and jones.
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in maynard and jones, the courts were concerned -- this court and the supreme court were concerned with the question about whether the government had intrusively acquired the location information, not from a third defendantsfrom the movements directly. here that's just not at issue. here the acquisition of the information comes from the business records of the telephone company. >> this third party approach creates a really nice bright line. but does it matter to whom the information is conveyed? for instance, medical records. that would be -- you know, a third party's record, but could you draw the same line? >> judge brown, i'm glad you mentioned this because it's important to recognize in the context of medical records just in the context, by the way, of telephone records, wiretap provision, etc., congress has
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acted to protect privacy in all of these areas. for example, following the miller case, congress passed a statute governing the secrecy of bank records. following the smith case, congress passed a statute governing wiretaps. hipaa, in your example, judge brown, would govern the restrictions, would impose restrictions on the proper use of medical information. so, too, here, fisa imposes requirements that are then enforced by the foreign intelligence surveillance court. and those protections are essential to understanding the program and the very limited intrusion on any privacy interest. we made the point that smith says there's no fourth amendment search at issue here. but it's important to recognize were a fourth amendment search, this would be a reasonable intrusion because it is so limited, because it is
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governed by those protections in the fisc order that needs a prior judicial order that a particular sort of actor is associated with an international terrorist group that only permit use of the metadata to the -- that limit use of the metadata to seeing the two steps of contacts from that reasonable articulate suspicion. those protections are very important to understand the way in which this program is tailored and the way in which any intrusion on privacy, whether protected or not, is so limited and therefore quite reasonable in light of the important government interests served by the program. >> so the government doesn't take the position that this falls outside the warrant requirement. you're actually saying it falls within it and you're right or you do say it falls outside of it. >> yes, your honor. >> it falls outside? >> no warrant is required here just as no warrant is required for drug testing students,
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athletes or drug testing customs -- certain government employees. so there are certain programs or -- >> right. >> there are certain programs that have been recognized to be reasonable even to the extent they do implicate fourth amendment interests and in those context the warrant is not required but a reasonableness is. >> so in your view, what is it that fisa court provides? you're not meeting some idea of a warrant requirement. reasonable suspicion and all of that is part of what they're looking at, but your view is that you wouldn't need that intervention? it's just that it's statutorily required? >> judge brown, yes, it's statutorily required. the role of congress and the court in this case ensures that the important privacy interest that the president recognized in his statements earlier this year are protected as part of this program. it's important to recognize, too, there are two steps to our
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fourth amendment argument. the first part is smith, miller, those cases and sure and guarantee that this is not covered by the fourth amendment at all. there is no search. there's no reasonable expectation of privacy in the business records of the third party. but even if it were a search, the second part of our argument is it would be a reasonable one that satisfies the requirements of the fourth amendment because it is so carefully tailored and the privacy protections are so expansive. i'd like to reserve the remainder of my time for rebuttal, if i may, unless the court has further questions. thank you, your honor. >> you may.
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>> good morning, your honors. it's my pleasure to be in front of you on a case that has monumental importance. in fact, it was judge leon who said at the lower court level that this case is at the pinnacle of natural interest. -- national interest. >> before you get to riley, can we talk about standing for a moment? >> love to. >> ok. it's your position that just querying the database is a search, correct? >> that's correct. >> in other words, there are -- in your view, two intrusions here. one is the collection, one is the query? >> the collection is enough at the inception, but what can aggravate that without a showing of reasonable suspicion or
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probable cause, which is not present here for the plaintiffs, and particular for all americans who have no ties to terrorism, it's an aggravated violation of the constitution. just just collecting the data is sufficient to implicate the fourth amendment, as judge sentelle pointed out. footnote number 1 of the verizon order at issue, the fisc order, he defines what metadata is and that's buttressed by the affidavit of expert witness edward felton. there are two affidavits. i know your honors have read them. the metadata is defined by the fisc court for purposes of this order, telephone and metadata includes comprehensive communications, routing information, including but not limited to identifying information, for example, originating and terminating telephone numbers, international
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mobile subscriber identity. the government would like you to think they don't get into identities but they do. >> the identity comes from the phone number, right? >> that's correct. sorry, your honor. >> as in smith, right? >> that's just one part of the metadata. from that, as expert felton testifies to, a computer expert at princeton, from that you can derive virtually every aspect of your personal and professional lives. who you met with, the duration of the call, that's not, of course, an issue which would be involved in a pin register or trace and trap. >> doesn't your standing theory really turn on a kind of telescoping and elimination of the imminence requirement? because the harm you're concerned with is what follows, not merely from the so-called querying, but once the querying is conceived from examination of the particular phone
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transactions to see what's going on and that occurs -- that's two steps away from the collection. so by turning collection into a standing creating event, you've eliminated imminence. your real concern -- and this is expressed very well, i think, i believe it's the aclu brief, is that there leads to government officials doing something. >> the aclu brief did make that point and we make that point as well. but it's not an issue that's doing something. they've done something when they obtain our metadata which is highly invasive which leads the government to have the ability -- when you take all of the factors of metadata together and my esteemed counsel here from the government admitted that it goes far beyond pin register or trap and trace. the -- >> i didn't hear that.
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>> well, it's an admission because -- [laughter] >> broke out. he broke out the various components which go far beyond the pin register. you know, it's ironic -- >> if you could stop there. explain to us how it goes way beyond the pin register. >> because you are able to get information with regard to who an individual has called but also calls into that person. >> trap and trace. >> yes. then you go three steps down the line and it multiplies, as judge leon pointed out -- they got 300 identifiers. judge leon does a very good job of identifying how 300 identity -- identifiers leads to hundreds of millions of others. and expert felton testified under oath in his affidavit --
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>> the identityifications never occur until -- the identifications never occur until the querying step is complete and the examination process begins, right? >> that's an interesting question, ok. the answer is, that's what the government says happens. but unfortunately, and it's built into section 215. they rely heavily on the so-called minute anyization procedures. the inspector general of the n.s.a. and other intelligence agencies have documented in a short period of time over 2,000 violations of the use of metadata. 2,000. workers -- and this is in the record from the n.s.a., and it's very broad in terms of who can get access. it's not defined what their expertise has to be -- has actually got in to the telephone records of their loved ones, their girlfriends, their boyfriends, husbands and wives.
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this has been repeatedly misused. to come in front of this court and say we don't get identifiers, we don't get into people's underwear, so to speak, is absolutely false. there's a documented record that judge leon went through and we briefed it of the n.s.a. and our national intelligence director not telling the truth to congress. in effect, lying under oath. you don't have to go that far. the very trapping -- and that's why it's a good question, judge williams -- for a long period of time, as set forth in jones, as set forth in maynard and other cases -- without a particularized showing of a reasonable suspicion that the subject is communicating with terrorists or terrorist groups or committing a crime is a violation of the first -- of the fourth amendment. it's also a violation of the first amendment. i am a public interest lawyer. i'm someone who challenges the government. i have my clients in the courthouse who had me
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communicating with me over the death of their son in afghanistan who died in a shootdown of a helicopter in a mission called extortion 17. they allege that government covered up their facts. there's sun was in nsa cryptologist. my clients have been critical of the government. we have on the record -- and judge leon didn't rely on it -- affidavit showing their computers had been accessed by the government. that's in the record. and i'm a lawyer and the -- and -- the aclu makes the same argument by obtaining my , metadata, seeing who i'm calling and having in fact going three steps down the line to what i do violates the most sacrosanct privilege in the law. my attorney-client privilege. so this case needs to be seen, not just in the context of what's happening to all americans which is perhaps the biggest violation of freedom and constitutional rights in american history, but it has to be seen in the context of the particular plaintiffs in this case who have had their
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attorney-client privilege desecrated, destroyed, violated. >> the desecration of which you speak occurs if and only if in which the government officials reached the third step of this process, that is move from collection through querying to actually examination of the numbers and following out what the -- who the holders of the numbers are and so forth. so, again, seems to me you're telescoping the process in a way that obscures analysis. >> we're not telescoping it, your honor, because the government has no right to that information any more than in riley, as chief justice roberts pointed out with great strength, that you couldn't have warrantless searches in the years leading up to the revolution going into people's homes. there's no right to grab -- >> this is less like riley than
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it was smith. riley had cell phones that had all sorts of information on it. isn't this more like smith than it is like riley? >> they are trying to extend smith beyond registers rather than trap and trace. >> what is the information they're getting here that is beyond what you get with a pin register or a trap and trace? >> yes, it is. >> i said what is the information here that you're getting that is beyond what you get with a pin register or a trap and trace? >> because they're able to with the confluence of factors -- i was reading what metadata is and as expert felton testifies to and they don't rebut that. they rely on their own state statement. >> why du not understand my question? >> i understand your question. the confluence of information allows them to piece together where an individual is, the duration of the call -- >> where it is part.
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>> his social -- >> where it is part, is that part of the metadata they collect, the location? >> it can be obtained that way, yes. >> it can be obtained that yes. that's a different question. is it being obtained? i'm told by counsel for the government that they are not collecting the cell tower data which is what would tell you where the person is. now you're telling me that they are collecting something that tells them where the person is? >> i'm telling you they are. and i'm -- >> what is it that they're collecting -- what in the record shows me that they are collecting data that says where the person is? >> the references in the record to the inspector general's report, which are in the record. that they have violated section 215 and the constitution of the united states. it's in the record, your honor. >> tell me where it is in the record. >> the details.
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>> we understand people claim violations of the constitution in section 215. the question is, what -- how is the data acquired different from the data acquired in a pin register? we keep asking it and you keep evading it. >> the different is, and judge leon pointed out, it's not just simply incoming phone numbers or outgoing phone numbers. >> well, the incoming would be obtained by trap and trace. >> yes, i know that. >> what is it that goes beyond the data that could be obtained by pin register and trap and trace? >> trunk identifiers. telephone: cut numbers. cardlephone calling numbers. >> what does the record show you that trunk identifiers give you? >> sorry >> what does the record show that the trunk identifiers give you? >> the record, and i urge you to look very closely, as i know you will, the affidavits of edward felten, which are unrefuted other than the denials of the federal government, which are frankly not to be believed, the reality is that this can be pieced together from what they
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have to identify information and to in fact locate where a person is, the duration of their communication and every aspect of their social and professional lives. >> can you tell us where to look carefully to find out where metadata collecting shows where a person is? don't tell me to look carefully. tell me where to look to show where a person is? >> what i'm saying is this -- -- you i'm asking you is made the statement just now that the metadata they're getting would show where a person is. i'm asking you to tell me where in the record i would find that. >> you'll find it in the affidavits of edward felton. >> i'm looking at it right now. i'm trying to find treatment of the trunk aspect which i don't. he seems to make a very good case that once you get to what i call the third step, the actual analysis of the data, with
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respect to a particular telephoner, you can get an awful lot of data. i don't see -- draw inferences from the location of the particular land lines, but i don't -- i don't see him making a case on how the trunk data has any effect at all. >> i'd like to reserve my time and i'd be happy to point that out in rebuttal. >> if you're going to point it out point it out now please. we're asking you know, tell us now, please, unless you need to look it up before the rebuttal. i'm sorry if you need to look it up. look it up. i'm sorry.
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>> well, he says -- it's a very detailed affidavit. but he points out, for instance, in the context of public interest groups how you can tell who the donors are by the duration of the call, that kind of thing and that you can, through trunk identifiers, find the location of an individual. >> remember that in smith, the government found out that smith was making abusive phone calls. i'm not sure you can get much more extreme than that. >> look at paragraph 118 of the felton affidavit. 18 of the felton affidavit, your honors. the information sought from verizon also includes the trunk identifier of telephone calls.
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this provides information how the call was routed through the phone network which reveals information about the location of the parties. for example, even if the government never obtains cell site location of the call, trunk identifier information revealing that a domestic call was carried by a cable from hawaii to the main land, united states, will reveal that caller was in the state of hawaii at the time the call was placed. and what's important -- judge leon, one of the most important findings in his ruling was at page 57 where he says, no court has ever recognized the special need -- because they're trying to rely on special needs here and that's an extreme circumstance to justify continuous daily searches of virtually every american citizen without any particular suspicion. in fact, the government urges me to be the first judge to sanction such a dragnet. your honors hit on this before. this is a long-term proposition
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that's different than a pin register. it's different than a trace or trap. there's no particularized showing of probable cause. to simply grab these records because the government can do it -- >> pin registers do not require probable cause. >> it requires a reasonable suspicion. >> under the statute as well here, your honor. and we're not talking about -- >> excuse me. you jumped ahead to the actual third step. the examination of the calls. you never attempted to show standing there. because there's no data in the record suggesting that your calls have been examined. >> yes, there is, your honor.
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the affidavits -- we have my affidavit and the affidavits of charles strange in the record. >> and how do those establish that those calls have actually been examined? >> because i in receiving telephonic information -- >> i'm sorry, people are -- >> been violated. that's in the record. >> say it again what it is that what is the phenomenon that you attribute to this. >> the phenomenon -- >> people are getting -- >> telecommunications have been breached. >> where is the evidence for that? >> we put forth evidence in our affidavit. the government said they can't confirm or deny. the government had an opportunity to reveal to judge leon in camera what was going on. it shows not to. heads i win, tails you lose. they hold the cards. the americans be damned. >> i'm still trying to get clear what phenomenon from which you infer that your calls collected in this program have been not
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merely turned up in a query but then examined. >> number one, i want to make clear here what our argument is. the gathering of the information at its inception is a fourth amendment violation. >> i understand the claim. >> secondly, there has been a showing under the minimumization where they claim to protect identities and locations that they have been repeatedly violated by the n.s.a. and the other government defendants. >> what is -- you still aren't answering my question. what is it that has happened to you that shows that it must have come from this -- the abuses or exercise of rights under section 215 under this program? >> the totality of the evidence, the nature of metadata, the fact that we have had invasions into my cell phones and into the computers and cell phones of mr. strange. >> what are the invasions?
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>> set forth in the affidavit -- i can give you an instance. the stranges are on a computer and all of a sudden a picture is taken of them purportedly by some entity related to the f.b.i. they don't have a camera on their computer. they are getting calls from afghanistan, strange calls that has nothing to do with their having to communicate to afghanistan with regard to their dead son. their son was a -- >> this sounds very peculiar. i am not sure how it links up to this program. >> regrettably, it's not peculiar because our government, and i'm a former justice department lawyer. i am the founder of judicial law freedom launch. i founded freedom launch. regrettable fact is the government has not been telling the truth to either lower court judge leon, to congress. we had the director of national security lie under oath, commit perjury with regard to this program. we had whistleblower edward snowden.
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the government had to admit they were doing this because they were forced to do so. judge leon pointed out, the government holds the cards. so they come in here, you know, arrogantly -- i'm not -- i'm not disparaging these lawyers. but the government as a whole comes in arrogantly and says we are above the law. we don't have to tell anybody what we're doing. and by the way, since we don't have to tell anybody what we're doing, we win. we'll get to continue doing it. you know, it was thomas jefferson that said, our founding father, second american president, when the people fear the government there's tyranny. we have tyranny. and if king george iii had the same powers as this n.s.a., our founding fathers would have never gotten to philadelphia, they would have been picked up and arrested before they got to sign the declaration of independence. this is not an academic matter. this is a matter of our rights as a people to be free from having the government stand over our shoulder and we have first amendment claim here, too. a chilling effect on freedom of
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speech, freedom of association. i can't talk on the phone anymore, that's in the record, with my clients for fear they will use i didn't find information and reveal attorney-client privilege. this is the most outrageous abuse of freedom in our history. it's not to be taken lightly. i take offense of the government coming in and saying we hold the , cards. you are not entitled to know. this is exactly why we fought the revolution. it's why, your honor, we have faith in you. if the courts don't step in here, we are going to be in the streets again regrettably. i don't want to see that i don't think you do too. >> thank you, mr. klayman. >> thank you. >> good morning, your honor. may it please the court. my name is cindy cohn and i represent the electronic frontier foundation, the american civil liberties union and the aclu.
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i want to thank you very much for giving us the opportunity to address you here. i'm happy to answer questions. a a few things i would like based on the commentary before that i hope i can assist you in sorting through the situation. first, we all believe that smith vs. maryland controls the situation and that government is attempting to expand smith to cover a program that is significantly larger than what -- than what smith had to deal with which were just the calls made by a suspect over three days. this is the only targeted mass collection of the communications patterns of millions of people over nine years and kept for five years. this information isn't volunteered, which was the center argument in smith. the information that you -- >> i thought smith acknowledged
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that the companies didn't give rs a choice as to whether they would have their -- the data that was recorded there recorded? >> well, that's correct. what smith was gathering was just the pin registers, just the numbers dialed out. it didn't include whether the call went through much less the duration of the call or the patterns of the calls that are happening here. so it's not information -- >> has the smith principle been applied to trap and trace as well as to pin registers? >> it has. it has not by the u.s. supreme court and i don't believe it has by this court either. >> ok. >> but, yes, there are some cases out there. >> if that's the case, that the smith principle applies to trap and trace as well as pin register, then it does cover the kind of data that you're talking about where the call comes from or what number the call comes from?
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>> i think that's correct, your honor. i think what's going on here is significantly bigger. and the government is trying to cram a very much larger program involving a lot more information that they ultimately can receive into a pretty tiny box. >> the salient difference between smith and the present case is one of magnitude rather than kind? >> i think that's fair. the information being gathered, i think trunk lines definitely give you a rough location of somebody which you wouldn't have gotten with the pin trap. the identifiers that are -- one is an identifier of your phone. the other is the identifier of card in your phone has information than just the phone in -- >> if we go back to the trunk identifier, that at best gives you some information about location, but in the era of
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smith, the phone number itself gave you conclusive information about a particular geographic point, did it not? >> well, it gives you the area code and a rough location. there is additional information. >> that's easy as pie to get, right? >> yes. the identity of the person whose phone -- >> and the location? >> correct. >> because they were land lines. >> there is additional information being gathered here. i don't think that's the most important thing that's different here. but it is true that there's a different information being gathered here and the government wants that information for a reason. you know, just four years after smith, the court recognized that it was going to think differently about gathering collection than it might think of the targeted collection. in smith itself, in footnote 5, the supreme court recognized that in situations in which the reasonable expectation of privacy had been perverted for one reason or another because
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the government came out and admitted they were spying on everybody, you have to go back to a different approach. i think if you look at smith itself and you look at knox later and if you look at riley and jones, you see that supreme court doesn't seem to think that it's stuck in this little box. that if metadata then we're done. or if they're -- these are both factors that goes into a calculus of reasonable expectation of privacy. once you start thinking of that as a calculus you can see in riley the court said just because you can get a small amount of information from somebody's pocket doesn't mean we have to be blind to the much, much larger information you can get from somebody's smartphone. we can think about those differences. we can think of the information in jones. the concurrences in jones say we are not stuck in the small box of smith vs. maryland. we can look at the big difference of the amount of time that somebody's location being
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tracked might make. where at a single point in time maybe no reasonable expectation of privacy. at some point between that and 28 days, a reasonable expectation of privacy, that's what justice alito's concurrence and justice sotomayor's concurrence. >> jones involved what otherwise might be -- i'm talking about concurrence. what otherwise would have been public knowledge just by observation became an invasion of privacy only because it created the mosaic. i'm using a phrase they didn't use. in this case, applying smith, the data that's being gathered was not -- was not public knowledge by observation but was willingly transmitted to a third party. >> correct.
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>> if that is not an invasion at all, then does it become an invasion because there's a lot of it? i mean, a thousand times nothing does not still equal nothing? >> i think a thousand times nothing -- i'm not going into math with you. [laughter] >> the supreme court doesn't follow my math in jones either. >> no. no. you know, i do think there is a difference that can come from the difference in scale. i think the felton declaration -- we gave you some examples in ours as well. i don't think that the reasonable expectation of privacy analysis should be blind to those differences. >> do you think the reasonable expectation approach is the correct approach? >> i do think that the reasonable expectation privacy approach is the correct approach. i think that metadata here, especially aggregated -- you know, a lot more -- if i got a call from my husband, you know one thing. if you know i got a call from my husband after he got a call from
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his oncologist, you probably know a little bit more. the aggregation gives a more invasive picture into somebody's life. >> well, that's true if you get to that step where you're doing those kinds of queries. but the conceptual implications here, it seems to me, are vast because on the one hand you're saying people continue to have a privacy interest in information they have voluntarily conveyed to a third party. and that is, i think, different from any way -- i mean, the reason that smith works is because it draws that very clear line that says, ok, if you've given this up, you no longer have a privacy interest in it. so if -- if we go with you, you know, if we follow the line of reasoning that you have, how do -- how do the police ever figure out what it's ok to look at and what it's not ok to look at because they would have to, i
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suppose, look at your subjected -- subjective intent? >> well, i think -- honestly, those are difficult questions that i think a court may have to address at some point. i don't think they are issue here. we have the government collecting everybody's record over a 13-year period of time and keeping them for five. so sometimes -- >> yeah, but how does that change the fact that this information was voluntarily conveyed to somebody else? in fact, if there is an invasion of a right, it appears to be the right of the telecoms because it's their business record, right? >> i don't agree. the third party doctrine i don't think is an on-off switch for people's privacy interest. it wasn't in the ferguson case in 2001. the u.s. supreme court, the hospital records case you referenced earlier. i don't think the constitution has nothing to say about whether the hospital can just hand you information over and it is only congress that's ever said that it matters, that the
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constitution has nothing to say about whether the hospital hands over your medical records to the government. and in fact, you're sitting on a bus doesn't mean you lose your privacy. in the chapman case, it didn't change the first amendment analysis. in the young case. even in cats. in cats, the person who was found to have a reasonable expectation of privacy was standing in a phone booth. they did not own that phone booth. >> the different with cats, i think, it was content, right? i mean, in other words, they could hear what was being said. it wasn't at the level of just information that you turn over to your carrier just by virtue of using that technology, right? >> yes. but i think that has the argument before. you're right. it was certainly about content than it was about noncontent. what cats was saying is that the fourth amendment protects people, not places. i think if you think of the third party doctrine as an
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on-off switch, you're falling backwards in that you're thinking about the places, not the people. the telephone records exist because you make the call. the government doesn't -- the telephone company isn't -- they have tons of records that have nothing to do with you. this one you have an important role in. >> i understand this is a new world and that the aggregation of all this information is unlike anything we've dealt with before. but what i'm trying to understand is, you know, if we make this the rule, then, you know, what does that do? it seems to me the implications go out in many different directions. for instance, if you say that conveying information to a third party has nothing to do with it, then what happens to the use of informants, secret agents, all these kinds of issues invariably now has to be sorted out? and so that's what i'm asking, what line would you draw?
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>> well, i would draw the reasonable expectation of privacy line, honestly, and i think the courts have really held you don't have an expectation of privacy in sharing information about future crimes with an informant. the courts said you don't have any reasonable expectation of privacy in possessing contraband. that's fine. here we're talking about millions and millions of innocent americans who are making their everyday phone calls and that government is swooping that up. there's no expectation of privacy in everyday calls you make. it's not like, you know, the special needs case where is you got somebody who is running a train or students engaging in behavior. these are regular people making everyday calls. they are being swept up in this. i think the failure of the government's position is that you can't take doctrines that were designed for specific situations and just decide that everybody is a suspect class. everybody has to reduce that you are expectation of privacy. i think you have to look, first, what the government is doing. and i think you can begin to draw the line.
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again, i don't have you have a reasonable expectation of privacy in a co-conspirator conversation. >> is there a line of legal or illegal activity? >> that is certainly something the courts have drawn in the you know, the other instance here is that the question is whether you can find any kind of suspicion whatsoever. here there's no suspicion whatsoever. they're trying to do away with that piece of what the constitution protects us with. you could imagine a special needs case or something where there was a category of people who you were looking into. >> what's the category of people in these stops for drunk driving which are aimed at preventing drunk driving? not by catching people who are driving drunk but catching the sense of then prosecuting but making sure that they don't continue on their way. that's -- there's certainly no
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individual targeting there, right? the police pick a place that they think is particularly suitable for catching in the sense that i just explained, drunk drivers. the overwhelming majority of them are totally innocent, and yet everyone in that dragnet is stopped. >> it's certainly the case there's dragnet. i don't think there's dragnet if they were everywhere and everybody. the police has to do some targeting of places. this is completely indiscriminant. and the kind of stops -- >> in terms of the drunkenness of the people who are stopped, for purposes of that kind of program, it's completely indiscriminant. they're stopped because they're driving through a particular cross-route or down a particular street, not because there's any evidence whatsoever that any of them, any particular one of them has ever had a drink. >> that's true, but given in a
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special needs context, you have categories. you have people who are driving -- >> people driving past the intersection of first and main. >> yeah, there is some tailoring that is going on. so in the michigan department -- the stop case -- the drunk driving case in the supreme court, the court distinguished another case -- the priest case, right, where people were being stopped in order to check whether they had proper licenses and what the supreme court said is the difference between sits, where we're looking for drunk driving and the other is there's some likelihood you'll drunk drivers here. in priest it was completely random and they didn't sew any -- show any efficacy. >> the efficacy seems very strong and i understand that judge leon discounted any possible benefits to this. but it doesn't seem to me there's much of a factual record supporting that discount. >> well, the government has admitted it could accomplish these goals with less invasive
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means. >> less invasive in the sense that database remaining in the hands of the phone calls until they're queried, right, but the same process of query would go on. there would be no difference as far as i could make in the querying and no difference in the examination of the particular records found to be relevant in the querying. >> well, the statutory -- the legislative language is still influx. i would take -- you're correct. there's a fourth amendment moment, an important one at the moment of collection. the moment of collection is when people are no longer secure in their -- it's the moment that a conversation is seized that
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matters. under the wiretap act, which was written in order to comply with the supreme court's decision, the seizure, that's when it occurs under title 3. it's not what the government does afterwards. there may be a -- >> you don't think it makes a different whether the government collects, say, a trillion things and looks at 25 versus the government collects 100 things and looks at 100? >> i think there's significant difference, your honor. >> well it doesn't count against you here. here the government -- the allottests elected and virtually nothing is examined. >> your honor, i do think it matters. first off, nothing is examined because of government protocols. >> yeah, those were part of the case, right? >> those are part of the case. >> and they arrived out of statute. >> i think that justice roberts was correct in riley when he
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said the founders didn't fight a revolution in order to earn the right of protocols. that's what the government is arguing here is that protocols keeps you safe. the protocols keep them safe. i think the contrary rule -- >> they are all court orders, right? >> yeah. they sign the protocols. well, it's been stepped up in recent years. but it doesn't make any sense. if you think about why we have the first amendment to try to stop general searches, they said it was ok for the -- you know, the king's troops to go into everybody's house and it only mattered what they pooled as to the actual going in it didn't matter, record every phone call, get a copy of the mail and the list of organizations and put a video camera in every bedroom and -- they got protocols and rules that say they can do it, i think the first amendment actually means what it says which is you should be able to
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be secure in your papers and not have to trust that the government will collect it but they'll do the right thing with it after they receive it. i don't think that's consistent with the fourth amendment. i do not think that is consistent with what the supreme court was talking about in riley. i do not think it was sufficient here as well. >> thank you. thank you. >> smith for the center for national security studies. our view is the court can should
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decide this case on the alternate ground that section 215 does not authorize the nsa data collection program. the statute points to a different variety of features -- >> before you get to the conclusion language and the defects in the statute, what do we do with the fact that mr. klayman has modified his complaint to exclude the statutory claim? >> i think we think the court has discretion in this, especially with the principle of constitutional avoidance with the state to decide the issue on statutory grounds -- >> do you have an example of a case that a court has done it? >> the united states vs. underwood, where the court reached the additional argument, and -- >> thank you.
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>> the features the statute points to our a variety of things, not just the relevance requirement, but it is supposed to be done by the fbi, and the fbi is supposed to be retaining and protecting all these records -- >> what was the statute adopted? there was an enormous amount of interchange between government agencies, data -- the nsa has computer capabilities. surely, it is anticipated that the nsa would -- >> that is if you assume congress had in mind there would be a massive database created -- >> you are focusing on the nsa versus the fbi issue. >> the fbi, being the identified agency is the agency that maintains the records, suggests
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that they do not imagine anything like the continuous collection of everybody's sensitive records, that they were imagining something that the statute says more likely to get with a one-time grand jury subpoena. you get information about a particular investigation, retrieved by law enforcement, and used for those purposes. the other thing that is important to recognize is the statute has a number of different features in other parts of the statute where they are authorizing continuous collection. every time that congress did best in fisa, section 702 for intelligence surveillance provision, it always provided a time limit for periodic review of continuous collections. here there is no such time
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limit. the fifth had to make that all up and create the entire structure under which this program is operating, because the statute was not intended to authorize continuous collection of massive amounts of data that is entirely irrelevant to what this government is investigating. that is not what this statute was meant to do. >> the allusion in the statute to grand jury subpoenas, basically grand jury subpoenas and other subpoenas, suggests very broad sweep. there are loads of cases where the government collects data, a huge multiple of the actual data that is going to find anything in -- >> the largest grand jury subpoena allowed must have been a tiny fraction of the amount of
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data being collected here, and there is always some category that makes sense. all the records of this doctor who is suspected of malpractice or bad activities, all the records of some corporation that is suspected, something that defines the records being collected other than everybody in the united states who is engaged in using a telephone, which is they say is not every telephone company. that i think is different in type in what congress intended 215 to do. under the doctrine of constitutional avoidance, you should not only press the statute first, your approach is supposed to be try to construe the statute in a manner that avoids this major constitutional pronouncement that you are being asked to make here, and i submit given all those features of the statute together -- >> how can we do that on a statutory claim that is not in existence?
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do you have a case, and i'm not sure what underwood said, where that says we are going to grant relief, not only under a different period under a district court, but under the theory it was pled? >> it was decided by -- >> it was abandoned -- >> that was the decision on the preliminary injunction motion. it is not like you are acting without the benefit of a record. all this is in the record -- >> i'm not sure just about the record, but the jurisdiction. do we have jurisdiction to base relief on a claim that was made? >> there is no limitation on this court's ability to -- >> you might not think that, but i'm asking you for some reason why i should think that? i have never been in a case where we granted relief -- was that a case in which they were using a statute to give a basis for relief that was not
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raised? here you are asking us to retain in being extraordinary relief, preliminary injunctions, based on something that is not raised before us. did that happen in underwood? >> it is not exactly the same, and -- >> underwood had to do with certificate of -- or was it a habeus-type case? >> i do not know the specifics, but it expressed the waiver of the discussion the does not deprive us of the power -- in the supreme court -- >> this is not just an ordinary situation of waiver of an argument, but where you are asking us to grant relief based on something that is not sought. >> the principle of avoidance suggests it is the right way for courts to behave in the
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situation instead of having a massive new constitutional --- >> that is not usually the way comes up. i have been in a number of avoidance cases, and i do not believe any of them involve granting relief based on a statute that was not raised before us. >> it was raised, it was decided, it was waived after the court on appeal here, and in that situation at least it should not be -- i would not think, controversial that the court should avoid the fourth amendment constitutional issue. the government response that you are precluded from addressing the statutory issues because the
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congress created a review remedy for recipients of the orders, but i think that argument has a variety of defects in it. there is no indication that congress excluded anybody else other than -- because they did not think the people in ordinary courts would be aware of these orders. you would not create a remedy for people from custodians of records. there's no indication that congress had a desire to put this court in a position of having to address the constitutional argument, which the government concedes is before you, but not decide in advance of that whether or not their actions are consistent with what congress mandated. i think the block case on which they rely is entirely different and there is no basis for finding that congress intended that you be put in a position of having to decide a constitutional issue instead looking at the statute, a statute, which is, after all -- >> indication in at least one of the cases for the fisa court, one of the recipients of the orders raised the constitutionality -- perhaps a statutory question. at any rate, raised whatever issues here on behalf of a particular telephone subscriber. that suggests that telephone subscribers' statutory claims
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can get heard even if they preclude the provision as read up to the hill. under our law, that counsel of -- particularly, that seems to be enough for us to stop looking for a way around conclusive language. >> the only time that such a claim has been brought was after judge leon ruled that this telephone, taking back to this is meant said tell us for sure this is what we are supposed to do. judge collier issued an opinion say he disagreed, he thinks it is authorized by statute, keep giving the data. the reality is the recipients of these orders have no incentive to enforce any of these requirements. they're completely immunized from any liability for complying with the orders.
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it is not their privacy that is at stake. that is what for many years up until 2014 no one -- >> why did this telephone company raising them? >> they wanted to cover themselves because if there was some problem after judge leon ruled. they did not appeal it. that is a one-time event probably or at least not an indication that the structure is such that we are going to have meaningful enforcement of these requirements in an adversarial setting. in terms of real enforcement by the recipients, they have no incentive to take that action except in that one-time situation. now, the other thing i wanted to
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mention, if you will indulge me, the government has this idea that all this was ratified by congress in 2010 and 2011, years after the court started collecting this metadata and after the 5th was authorizing them on these things. it was an extension, two extensions of 215 along with a couple of other provisions in 2010 and 2011. there are multiple problems with ratification argument they made. but a problem is they do not claim that most members of congress were aware of the program when they voted to extend it. >> were there senators on the floor of the senate saying before you vote for this you should go and look at this data? >> no indication of how many senators took them up on this. >> and the other senators, to the extent that was true, the other senators thought that warnings that senator wyden, senator udall, they were willing to go ahead in the face of them? >> the question is the intent of congress to authorize a program which is not authorized on the face of the statute. that intent can exist by the virtue of the fact that the
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senators did not heed senator wyden's warning and read the secret memo, which they cannot tell anybody else about. we have no record saying that anybody in the majority of congress was aware of the program at the time that extended the statute. >> this is a silly question, but it comes to mind, had you compare it with a level of awareness of congress, but generally, as to what -- [laughter] >> in the usual case of passing a statute, you assume that congress intended what the statute says that they voted for. here we have a statute that does not support what they are doing, and five years later, what they are saying is we got to change but putting this memo in a secret room and having people read it or not read it, and suddenly the statute in something different. all of this happening without the american people having any
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awareness of it at all. it is like they passed a new secret law that says they are going to be able to take all your metadata and put it in a vault somewhere and hold on to it. i think the ratification in this context is extremely troubling for a variety of reasons, in addition to the fact that there were three different programs they extended. what some of the was thinking, i do not like this program, in order not to extend that and be charged with ratification, they had to shut down three different programs, and then you would not have been able to tell constituents what you did it because it is a secret. they are not allowed to tell other members of congress that you did it. the situation is fraught with problems in terms of ratification, that is the final point i wanted to make, your honor. thank you. >> thank you. you have 12 minutes remaining. >> thank you, your honor. couple quick points on rebuttal. first, a number of the questions that the court has raised when i was before counsel, correctly
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reflect that this program has to be assessed on the basis of what it actually is, not what the plaintiffs or amicis might fear. and here, the program exists in a particular way, not nearly by executive discretion or choice, and by the way, that would still be relevant, but here because congress passed a statute directing a court, an article three court, to take action, and that court has taken extensive action, issuing multiple orders over many years addressing many of the same questions that the plaintiffs here have raised, explaining the basis for the program, and carefully limiting how the program operates and how the government can use the data collected in this section 215 metadata program. for example, the judicial involvement requires now a prior judicial determination of a reasonable, articulable
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suspicion. it requires oversight, reauthorization every 90 days, careful limits on how this data can be used, only after a query, and the query can only show that two steps of contact. that confirms the limited inclusion to any privacy interest. the president's own statements are also relevant, but by emphasizing the importance of protecting privacy and the importance of preserving this capability. the president's speech and statement in march of this year following his earlier speech in january did emphasize as well the importance of transparency, and so the executive has gone-- >> what does that have to do with our decision?
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>> one of the arguments on the other side is the government has not disclosed everything, but the government has disclosed far more in the context of this case than one would normally expect for a national security program. he have done a great deal to ensure transparency in a robust program, and thereby made available very public materials that the plaintiffs -- >> should we establish a precedent that speeches of the president are part of the record for granting a preliminary injunction? >> it does not need to be part of the record. >> ok, so you are arguing outside the record? that is not what we normally expect out of you. [laughter] >> i think i have made a point about the court's involvement in a limited use of the program. but the court's question also reflects that it is not accurate to articulate fears about the possible uses of this metadata when we do know because of the orders that have been released publicly exactly the limitation
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that the court imposes on that use, and, therefore, the relevant questions are is there any possibility that information about these plaintiffs' phone calls would be reviewed by any person, and that contrasts this program with the kinds of cases that the supreme court decided highlights the lesser privacy interests here, because unlike in miller and the many criminal cases, the supreme court has decided, the government is not using all this information in order to go after individuals. >> that reiterates if the government is not arguing it is not a violation in obtaining the data in and of itself, that is not a fourth amendment
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violation? >> absolutely, and one of your questions earlier reminded me of an important point on that in that aspect. >> so go through your papers but do not do anything with what you find in your paper some of the fourth amendment is not violated? >> it is a very different question than when individual effects and property have been invaded. >> property is the interest protected in the fourth amendment. it has a historical basis, property, and it is the basis relied on by the opinion of four -- i do not know if that is the one that was enjoined in -- to make five, but the protection of privacy is the interest relied on by the alito concurrence in jones, recognized by the scalia opinion in jones. property is an important interest, and it is the original interest, but not the only interest. is there not a privacy invasion in the very fact of reviewing
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phone calls, or collecting phone calls? >> there is not, let me emphasize you're absolutely right, both property and privacy are in play, and protected by the fourth amendment. what we know of in this case is those property interests are those of the telephone company, and in a subpoena contexts, records can be subpoenaed without indicating fourth amendment concerns. an issue, one example of that, the many other grand jury cases we cited can also make the point. the discord in maynard, the judge's point, but the talking about the privacy interests, and emphasizing also that this think wished the supreme court's decision and made the point that the customer in this context of metadata actually expects all phone numbers dialed to be collected in a list, unlike an individual traveling on the public -- that might not expect that aggregation. that goes to the question we were talking about earlier, doesn't it? i would think it is important to focus on this program and the
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nature of it. metadata collection alone is not sufficient. you were asking earlier if the government collects, pick a number, a million whatevers, and then only looks at two of them or 25 of them, it is a very different case than where in a criminal investigation the government looks at everything in an effort to prosecute an individual defendant. there we have that example where -- >> you're looking at the -- to decide whether to prosecute, not just in order to prosecute? >> here remember, the very looking is limited by the orders, and that is an important privacy protection. >> in the end, it comes down whether smith controls or does not? >> and we think smith clearly does control here. >> a lot was said on that
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proposition. we said smith was inapplicable, that would take us to the issue. what is the relationship between the alternative program outlined by professor feldman in his second declaration and the president's plans, proposals for change of the program? both of those seem to be intended to remove the collection, the government collection aspect of the program. >> judge williams, the various alternatives that have been proposed, including the one that the president urged congress to pass, all of these alternatives are predicated on an important fact, which is under current law we could not do, we would not meet this need, we cannot fill the gap that the president and the intelligence moody have identified without first doing
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it pursuant to section 215. we would need a different legal structure, in order to adopt those alternatives. that is the president made that we think is relevant. it is important recognize -- >> i'm not sure how that fits in on reasonableness. >> on reasonableness, under the special needs doctrine, or generally, there is no requirement that the government offer the least restrictive means of a compelling interest or goal. the case law is clear under the doctrine, that the program needs only a reasonably effective means of a compass and these goals. the evidence in the record, including the holly declaration, make it clear it is a reasonable means of identifying terrorist contacts within and outside the united states in order to help prevent terrorist attacks against the united states. that is a compelling government interest indisputably -- >> do you think national security is itself an exception to the requirement, or do you
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need special needs? >> we have not made that argument. i do not think there is any basis, any need for this court even address an argument that would be that broad in scope. there are a number of exceptions that the supreme court has recognized as reasonable under the fourth amendment, and the special needs doctrine -- all of them require a balancing of government interests against the degree of an intrusion of privacy, and in that context especially, it is important to recognize the limitations in the orders on the use of this information and the fact that for the vast majority, all but
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the tiniest fraction, none of this metadata will ever be seen by any government analyst, and any use of it is carefully limited and overseen by the courts. so turning briefly to the point about the statutory arguments raised by one of the amici, i would like to emphasize the question highlighted that what is at issue here is a preliminary injection that the district court has entered against the operation of a government program. there's no way to support a claim, and remember, under the preliminary junction standard, plaintiffs must show a likelihood of success on the merits. there's is no way to support that determination with respect to the argument. the plaintiffs had not only abandoned, but withdrawn and the court itself by filing an amended complaint that no longer relied on that basis. if there were any question about
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whether the district court should, this court, the plaintiffs should have talked about a statutory claim that is not in the case of the only answer would be that this court should reverse and vacate a preliminary injunction that is not supported by the kind of argument that amicus thinks is now the appropriate one to invoke. the fact is that the plaintiffs have raised a constitutional claim, and that is what is before this court, that is the basis for the claim, and a member, the district court found in the government's favor on preclusion that the fisa itself precludes this kind of claim. >> you were saying if we address the statutory issue and found it to be a winner, we would have to vacate the injunction and then what? >> i do not think you have to address the claim. if you agreed -- and i see my time has expired, i would like to answer your question -- if
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the court were to agree with amicus hat the claim should be raised before the case can be decided, the answer to that question is that there is no support for the preliminary injunction at the district court entered in. it must be vacated and withdrawn. i would emphasize if there is any reason for the court to believe the information, the argument that historically in play, we would like to address it in a supplemental brief. >> why would that follow? it seems to me that the concern you are voicing could be met by our addressing the statutory claims. of course, if we rejected it, is no longer a constitutional claim, no problem. if we accepted it, then we would still have to vacate the injunction, because it was based on something totally different from the plaintiff's claim. that would be the thing to do.
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>> i think, judge, williams, to our multiple reasons for doing this, why we emphasized in this point that is they are limited only -- and it highlights the strange nature of the argument raised by amicus, is that it was decided against an in district court that they have abandoned on appeal as well. those are two banks separate reasons the court should not address it. if there were any reason to address, that that argument should be in play. the proper basis would not be for the court to uphold the permanent injunction, but to vacate and reverse it on the ground as well as -- >> isn't that outcome different from what happened in u.s. national bank of oregon where i think both parties disclaim to issue and the court charged ahead and resolved it on the ground that it had discussion to
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resolve logically anterior issues. >> your honor, i'm struggling to remember the facts of the case. >> basically, the fact that was discovered in the course of oral arguments here that it was quite possible that the statute the parties had argued about had never in fact been lawfully enacted. it does seem rather anterior, more so than i think the statutory claim -- >> and there the statute was in play in the case. i think a better -- >> the meaning of the statute, yes. >> but meaning turned on its validity. one point that i would be happy to provide the court if necessary is the supreme court case from 1993, catalina hills talking specifically about the constitutional avoidance rule making the point that the fact that there may lurk in a case a nonconstitutional ground for decision is not a sufficient basis to invoke the rule of constitutional avoidance. in fact, case 1, 1993, the supreme court. i would also like to -- i see my
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time has expired. judge brown, you raised the point about the conceptual invocation of the case came and i would like to point to one of the authorities we relied on in our brief that the district court also discussed, and that is the article i -- about the third-party doctrine in which he makes the point because the exclusionary rule, the ordinary remedy for violations in the fourth amendment, that it is very important to have a bright line standard in place for law enforcement to follow. smith provides that. miller provides that. the argument that the plaintiffs
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would not invoke that and raise the kinds of concerns that your question raised, judge brown. i know the plaintiffs made no mention in their argument on that point which we addressed on our brief. thank you, your honors. we urge you to vacate. >> thank you very much. >> there is a cross-examine, so perhaps two minutes. >> two minutes. >> you should restrict yourself to the cross. >> yes, your honor. >> judge leon did not reach the first amendment issues in this case. he thought it was sufficient to decided and the court, but the supreme court decision in naacp, this has a chilling effect on free speech.
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the fact that everyone's records are being obtained by the national security agency and other intelligence agencies. the naacp features a very strong case. i'm a public advocate. i am the head of a public interest group. as a result, it does have the chilling effect on people coming to see me, talking freely, being able to defend themselves against actions by the government and others that have harmed them. >> do you feel you are targeted like the naacp was? >> my being targeted, i would be surprised if i'm not. with regard to the issue of grabbing everybody's records, clearly, the nsa and the other government defenders can go to that telephone companies with a particular showing of reasonable cause. if there is a reason to believe, a reasonable reason that in fact someone is in contact with a terrorist organization or a terrorist, that no one ask that specific need. the extent of the constitutional violation here is beyond any
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imagination in america law, as judge leon pointed out, and for this government to come in front of us and say we do not look at identifying information, we do not violate the privacy of individuals come up because we do not know who they are flies in the face of the nsa's only inspector general, who found in a limited time, six months, over 2000 violations of section 215 and the constitution. so they themselves are not being candid with the court, the government defendants. they do systematically deny those rights, even to the extent that they are getting into the communications of people that they are worried about are cheating on them in their private sex lives.
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the capability here is anonymous, and this has going back to the cross, appeal notwithstanding the fourth amendment issues, huge implications on the right of free speech and the right of association. this cannot be permitted in a civilized society. the american people do not need to be under the sword of damocles every moment they pick up their friends to make a call, and myself in particular, when i talked to a client in a public interest capacity. i thank you for your time. the american people look to you to protect them from the tyranny of this kind of government.
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thank you. >> thank you. >> opened to all middle and the theme,dents, on , how it has affected you and your community. for students and teachers totaling $100,000. for the list of rules go to student and gina mccarthy announced this week car companies hyundai and kia will .e fined $100 million the settlement is the largest penalty under the clean air act. this is half an hour.
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>> good morning. i am joined today by administrator gina mccarthy of the environmental protection agency. settlement will send an unmistakable message to complyers that they must and must be forthcoming about forthcoming with the epa about critical certification requirements-- and that the u.s. department of justice will never rest in our determination to protect american consumers. we are announcing today that the united states has filed a complaint in federal district court alleging that hyundai motor america, kia motors america, and related entities violated the clean air act by selling roughly 1.2 million cars -- throughout the united states -- based on inaccurate representations of the vehicle'' performance and emissions. for context, beginning in 2012, hyundai and kia, like all other
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light duty car makers, had to meet certain greenhouse gas emission limits. these emissions correlate with the fuel efficiency of a vehicle -- because, in essence, the more fuel efficient your car happens to be, in miles per gallon, the less greenhouse gas it emits. the clean air act requires car manufacturers to test representative vehicles in order to ensure that they meet emission standards. these manufacturers then must apply to the environmental protection agency for what is called a certificate of conformity. through this process, car companies provide assurances to the epa that any car like the test vehicle will also meet the necessary emission standards. in our complaint, we maintain that hyundai and kia misrepresented to the epa a key vehicle characteristic -- known as the "road load force" -- of each of six car models when it applied for certificates for
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those vehicles. because they used inaccurately low numbers to demonstrate compliance with emissions standards -- cherry-picking data and conducting tests in ways that did not reflect good engineering judgment -- hyundai and kia calculated higher fuel economy and lower greenhouse gas emissions than these vehicles actually have. the companies then reported the lower greenhouse gas emission numbers to the epa in their applications. they claimed more ghg emission credits than they were entitled to. and they touted these inaccurate fuel economy statistics to consumers. because of the misrepresentation of the road load force, we allege that the hyundai and kia vehicles in question are uncertified. and each uncertified vehicle that was sold constitutes a separate violation of the clean air act -- because this important law fundamentally depends on accurate testing and reporting by car makers.
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any company that misrepresents the performance of their test vehicles risks harming human health and the environment, either by causing more pollution than the law allows, or, as happened in this case, by claiming greenhouse gas emission credits they did not earn -- to the tune of roughly 4.75 million metric tons. without this enforcement action, hyundai and kia could have used or sold those emission credits later. violations like this also compromise key safeguards that preserve fair and open competition in the marketplace by putting other car makers at a competitive disadvantage. companies that comply with the law may spend more to achieve emission characteristics than those that misrepresent the performance of their vehicles. they may see their sales affected by the claims of other companies regarding, for example, better fuel economy. more importantly, all consumers have the right to know that the cars they buy actually have the
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characteristics that are represented to the epa -- a basic compact that hyundai and kia flagrantly violated in this case. under the historic settlement we announce today, hyundai and kia will remedy their conduct by doing three things. first, they will pay a civil penalty of $100 million -- the largest civil penalty ever secured under the clean air act. this will send a strong message that cheating is not profitable -- and that any company that violates the law will be held to account. second, hyundai and kia will forfeit the greenhouse gas credits that the companies wrongly claimed based on their inaccurate reporting. our settlement will require them to relinquish 4.75 million metric tons' worth of credits, which could be valued at hundreds of millions of dollars. and finally, hyundai and kia will be required to implement
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rigorous new procedures -- including training and enhanced audit testing of their vehicles -- to prevent this kind of violation from happening again. this unprecedented resolution underscores the justice department's firm commitment to safeguarding american consumers, ensuring fairness in every marketplace, protecting the environment, and relentlessly pursuing companies that make misrepresentations and violate the law. we are pleased to be joined in this action by the california air resources board. this announcement illustrates that this type of conduct quite simply will not be tolerated. and the justice department and our partners will never rest or waver in our determination to take action against anyone who engages in such activities -- whenever and wherever they are uncovered. i'd like to thank everyone who made this resolution possible -- particularly ben fisherow, karen dworkin and jason barbeau, of the environment and natural resources division's
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environmental enforcement section. at this time, i'd like to introduce gina mccarthy, who will provide additional details on today's announcement. >> first of all, let's lower the microphone. hello. let me thank attorney general holder for having us here today and for his partnership on today's announcement as far -- and for ag hearst for all of his of his work. . want to think cynthia giles i want to recognize phil brooks done tremendous work. i want to congratulate jana mckay and the whole team at epa for working so hard to make good on our rules that epa so
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creatively and effectively worked with this community to put in place. thanks everybody for this. the light duty vehicle role was the first time the epa acted to regulate greenhouse gas emissions. we acted under the clean air act. we were addressing the vehicle emissions because it is toential to our commitment fight climate change. and the settlement actually delivers on the commitment of that rulemaking. when we hold companies accountable through accurate testing and through honest reporting we can ensure the real emissions reductions that we attempted to 15 and expected to achieve are actually delivered for the american public. when we hold them accountable we
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actually make good on our promise to consumers that they know what they are buying and they are going to get the emission reductions and clean vehicles they are intending to purchase. under president obama's leadership the epa and dot historic greenhouse gas and fuel economy standards are cutting carbon pollution that you'll our changing climate and they are saving families money at the pump. we know fuel efficiency cells, there is no question about it. it is the number one factor that consumers think about when they are going to buy a car. the auto industry has come back from the brink because it is feelning and selling more -- fuel-efficient cars that consumers want to purchase. as 2009 the auto industry at it more than 200 the --


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